JUDGMENT :

(Renu Agarwal, J.)

1. The capital reference No. 1 of 2018 arises out of reference made by learned trial court under Section 366 (1) of Cr.P.C, 1973 to this Court for confirmation of death sentence awarded to appellant Govind Pasi.

2. The Criminal Appeal No. 1004 of 2018 has also been preferred by the convict appellant Govind Pasi s/o Hari Prasad Pasi R/o Gram Kumbh Police Station Gyanatnagar District Faizabad against the judgment and order dated 17. 5.2018 passed by the Additional Sessions Judge, F.T.C.-I, Faizabad in Sessions Trial No. 122 of 2013 State Vs. Govind Pasi, arising out of Case Crime No. 27 of 2013 Police Station Inayat Nagar District Faizabad vide which the accused has been convicted and punished with imprisonment for life and fine of Rs. 20,000/-under Section 376 IPC, imprisonment for the period of three months in default of payment of fine and has been convicted and punished with death penalty with 20,000/-fine under Section 302 IPC.

3. The facts of the case in brief are that:

4. An FIR was lodged by the complainant Jamuna Prasad on 29.01.2013 that his niece aged about 10 years went to school but did not return. On search the dead body of deceased ‘X’ was found in the field at about 7:30 p.m. Her scarf was wrapped around her neck.

5. On the basis of written report in Police Station Inayat Nagar District Faizabad, a case was registered as Case Crime No. 27 of 2013 on the same day i.e. on 29.01.2013 at about 08:30 p.m. against some unknown persons under Section 302 IPC and the same was entered in general diary No. 38 at 20:30 p.m. The investigation was entrusted upon the Station House Officer, Ajay Prakash Mishra who recorded the statement of witnesses under Section 161 Cr.P.C, inspected the spot and prepared the site plan, collected plain and blood contained earth, prepared recovery memo and prepared recovery memo of under-garments, leggings (Pajama), shoes and school bag of the deceased ‘X’ and conducted inquest and prepared inquest report and all the relevant papers relating to the postmortem of the deceased ‘X’. The postmortem of the deceased ‘X’ was conducted by Dr. S.K. Tripathi.

6. The name of convicted/appellant Govind Pasi came into light during investigation. The arrest and recovery memo of under-garments of accused were also prepared. The Investigating Officer collected evidences against the convicted/appellant Govind Pasi and filed the chargesheet in the Court.

7. The accused was provided copies of the police papers in compliance of the provisions of Section 207 Cr.P.C and the concerned court committed the case to the Court of Session.

8. The charges were framed against the convicted/appellant Govind Pasi under Section 302, 376 IPC and read over to convicted/ appellant Govind Pasi. The accused abjured himself from charges and claimed to be tried.

9. The prosecution, in order to prove its case produced 11 witnesses:

(A) P.W.-1 Jamuna Prasad-complainant;

(B) P.W. -2 Ram Prakash, last seen witness of the deceased ‘X’;

(C) P.W.-3-Phool Chand, who has seen the deceased ‘X’ being carried by the appellant Govind Pasi towards the sugarcane field of Shri Pal.

(D) P.W.-4-Vinod Kumar, who is also the witness of fact and said to have seen the deceased ‘X’ when she was running towards her school to the north west near the grove.

(E) P.W.-5 Dr. S.K. Tripathi, who assisted Dr. S.P. Bansal in conducting post mortem of deceased. P.W.-5 deposed that the dead body of the deceased was identified by Jamuna Prasad who revealed his identity as the uncle of the deceased. The postmortem was conducted at 8:15 a.m. on 30.01.2013. P.W.-5 also narrated the ante mortem injuries found on the body of the deceased.

(F) P.W.-6 constable clerk Rahul Singh proved the Chik report No. 7/13. P.W-6 prepared and signed the chik report in his hand writing. The chik report is exhibited (Ka-3).

(G) P.W-7 Uma Shankar Yadav, Principal of M.D. Public School deposed that the name of the deceased ‘X’ was entered in register prepared in the